Comment by bawolff
4 hours ago
> One big issue is that uninvolved member states are agreeing to enforce ICC warrants up front.
Extradition treaties are common among soverign states. This is no different.
> For example members states have refused to arrest Putin despite having a theoretical legal obligation to do so.
Sometimes you have to bow to realism. Nobody is arresting the head of state of a nuclear armed power. That is a death wish.
Also while the idea of throwing aside soverign immunity for international crimes has quite a bit of precedent, especially for multinational tribunals, its not exactly as on firm ground as the rest of this.
> The ICC has issued warrants for individuals for alleged crimes committed in at least two states that reject ICC jurisdiction, those states being Afghanistan and Israel.
The jurisdictional theory for the Israeli nationals is that the crime took place in palestine which is a member state. If a trial took place im sure they would try and argue that palestine is not really a state, not competent to join the rome statute, or failing that, its territorial extent does not include gaza. It would be up to a judge to rule on that
Afghanistan joined signed the treaty. They have not done the proper procedure to withdraw.
> Nobody is arresting the head of state of a nuclear armed power.
So what's the point of issuing arrest warrants to heads of nuclear armed powers like Russia/Israel then if they wouldn't get arrested?
> If a trial took place im sure they would try and argue that palestine is not really a state, not competent to join the rome statute, or failing that, its territorial extent does not include gaza.
If you go by the UN it's a non-member observer state. If you go by the de facto government of Gaza they(Hamas) clearly never signed the Rome statute.
> It would be up to a judge to rule on that
Well the real question is what judge even has the authority to rule on something like that, most sovereign states will give their own domestic courts authority above any external/foreign courts.
> Afghanistan joined signed the treaty.
The de jure government may have, but not the de facto government. The Palestine jurisdictional situation is even more confusing since they were never recognized by the UN or Israel as a full state.
> They have not done the proper procedure to withdraw.
They withdrew in practice since the ICC has no independent enforcement capability. Not that it means much anyways since even member states will regularly ignore what they signed.
It's a very strange situation where a courts rulings can be almost completely detached from the de facto jurisdiction on the ground. This whole strategy of asserting jurisdiction by the ICC without having any real enforcement capability makes it look like the ICC is making decisions that are totally detached from reality and undermines their own credibility.
> So what's the point of issuing arrest warrants to heads of nuclear armed powers like Russia/Israel then if they wouldn't get arrested?
Well they won't be heads of state forever. The Israeli guy might even be out of power at the end of the month. And it does restrict their travel - fairly significantly. They of course didn't just issue warrants for heads of state, although the same analysis probably applies to the other accused.
Ultimately i think it was an ideological stand - The ICC prosecutor wanted to say nobody is above the law, even if practically there are limits.
At the same time, i do kind of agree, it undermines the ICC when it puts itself in a position where it knows it cant really win, and makes it seem in some ways like it is making a political statement rather than pursuing justice.
> If you go by the UN it's a non-member observer state. If you go by the de facto government of Gaza they(Hamas) clearly never signed the Rome statute.
Well yeah, that is why its a contentious question. People who recognize the state of Palestine generally view Gaza as part of it, despite the fact that the (official) state of palestine only controlled the area for a very short time long ago. Not to mention Palestine lacking some of the traditional attributes associated with states. It would be up to the judges of the ICC to determine what the ICC thinks. I think there was already a preliminary ruling, but if the Israeli accused surrendered themselves, i'm sure that would have to be relitigated.
> The de jure government [of afghanistan] may have, but not the de facto government
well, de jure & de facto at the time. Governments change, but treaty obligations stay. I think the taliban considers itself the successor state. They could have withdrawn at any point (with 1 year notice) if they felt like it. they still havent.
> They withdrew in practice since the ICC has no independent enforcement capability
The main point of withdrawing is rescinding the ICC's permission to use the states soverign ability to prosecute crimes as a basis of jurisdiction. Like yeah, there is also the cooperating in apregending fugitives bit as well, but that was always mostly on the honor system.
>It's a very strange situation where a courts rulings can be almost completely detached from the de facto jurisdiction on the ground. This whole strategy of asserting jurisdiction by the ICC without having any real enforcement capability makes it look like the ICC is making decisions that are totally detached from reality and undermines their own credibility.
I'll grant you its strange in the Palestine case, where the state of palestine does not have de facto juridsiction in gaza, but that is kind of exceptional.
In most cases the situation is more that the accused has either fled or otherwise not present in the territory, which is pretty normal for courts. Like with ukraine, i'm sure ukraine would have no problem prosecuting putin if he presented himself to ukraine. The issue is he is at large outside of the territory. That seems pretty common thing to happen in normal courts.
People give most of the attention to the weird cases, but i think the less famous icc cases tend to be a lot more normal.
In many ways, the ICC is best viewed as an extradition pact with its own court.